EXHIBIT 4.2
WARRANT NO. ______
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY OR ACQUIRABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE OFFERED, SOLD, ASSIGNED OR TRANSFERRED, IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT
REGISTRATION UNDER SAID ACT IS NOT REQUIRED.
SERIES E-2 WARRANT
To Purchase [NUMBER] Shares of Common Stock of
SPECTRUM PHARMACEUTICALS, INC.
THIS IS TO CERTIFY THAT [NAME], or registered assigns (the
"Holder"), is entitled, at any time prior to the Expiration Date (as hereinafter
defined), to purchase from Spectrum Pharmaceuticals, Inc. a Delaware corporation
(the "Company"), the Warrant Shares (as hereinafter defined and subject to
adjustment as provided herein), in whole or in part, at a purchase price of
$6.50 per share, all on and subject to the terms and conditions hereinafter set
forth.
1. DEFINITIONS. As used in this Warrant, the following
terms have the respective meanings set forth below:
"Affiliate" means any person or entity that, directly or
indirectly through one or more intermediaries, controls or is controlled by or
is under common control with a person or entity, as such terms are used in and
construed under Rule 144 under the Securities Act. With respect to a Holder of
Warrants, any investment fund or managed account that is managed on a
discretionary basis by the same investment manager as such holder will be deemed
to be an Affiliate of such Holder.
"Appraised Value" means, in respect of any share of Common
Stock on any date herein specified, the fair saleable value of such share of
Common Stock (determined without giving effect to the discount for (i) a
minority interest or (ii) any lack of liquidity of the Common Stock or to the
fact that the Company may have no class of equity registered under the Exchange
Act) as of the last day of the most recent fiscal month ending prior to such
date specified, based on the value of the Company, as determined by a nationally
recognized investment banking firm selected by the Company's Board of Directors
and having no prior relationship with the Company.
"Business Day" means any day that is not a Saturday or Sunday
or a day on which banks are required or permitted to be closed in the State of
New York.
"Certificate of Designations" has the meaning assigned in the
Purchase Agreement.
"Change of Control" means the (i) acquisition by an individual
or legal entity or group (as defined in Section 13(d) of the Exchange Act) of
more than one-half of the voting rights or equity interests in the Company; (ii)
sale, conveyance, or other disposition of all or substantially all of the
assets, property or business of the Company, or (iii) the merger into or
consolidation with any other corporation (other than a wholly owned subsidiary
corporation) or effectuation of any transaction or series of related
transactions where holders of the Company's voting securities prior to such
transaction or series of transactions fail to continue to hold at least 50% of
the voting power of the Company.
"Closing Date" means September 26, 2003.
"Commission" means the Securities and Exchange Commission or
any other federal agency then administering the Securities Act and other federal
securities laws.
"Common Stock" means (except where the context otherwise
indicates) the Common Stock, $0.001 par value per share, of the Company as
constituted on the Closing Date, and any capital stock into which such Common
Stock may thereafter be changed or converted, and shall also include (i) capital
stock of the Company of any other class (regardless of how denominated) issued
to the holders of shares of Common Stock upon any reclassification thereof which
is also not preferred as to dividends or assets on liquidation over any other
class of stock of the Company and which is not subject to redemption and (ii)
shares of common stock of any successor or acquiring corporation received by or
distributed to the holders of Common Stock of the Company in the circumstances
contemplated by Section 4.3.
"Current Market Price" means, in respect of any share of
Common Stock on any date herein specified, if there shall not then be a public
market for the Common Stock, the higher of (a) the book value per share of
Common Stock on such date and (b) the Appraised Value per share of Common Stock
at such date, or if there shall then be a public market for the Common Stock,
the higher of (a) the book value per share of Common Stock on such date, and (b)
the average of the daily market prices for 20 consecutive Trading Days
immediately preceding such date. The daily market price for each such Trading
Day shall be (i) the last sale price on such day on the principal stock exchange
(including Nasdaq) on which such Common Stock is then listed or admitted to
trading, (ii) if no sale takes place on such day on any such exchange, the
average of the last reported closing bid and asked prices on such day as
officially quoted on any such exchange (including Nasdaq), (iii) if the Common
Stock is not then listed or admitted to trading on any stock exchange, the
average of the last reported closing bid and asked prices on such day in the
over-the-counter market, as furnished by the National Association of Securities
Dealers Automatic Quotation System or the National Quotation Bureau, Inc., (iv)
if neither such corporation at the time is engaged in the business of reporting
such prices, as furnished by any similar firm then engaged in such business, or
(v) if there is no such firm, as furnished by any
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member of the NASD selected mutually by the holder of this Warrant and the
Company or, if they cannot agree upon such selection, as selected by two such
members of the NASD, one of which shall be selected by holder of this Warrant
and one of which shall be selected by the Company.
"Current Warrant Price" means, in respect of a share of Common
Stock at any date herein specified, the price at which a share of Common Stock
may be purchased pursuant to this Warrant on such date. Until the Current
Warrant Price is adjusted pursuant to the terms herein, the initial Current
Warrant Price shall be $6.50 per share.
"Demand for Product-Triggered Redemption" has the meaning
assigned in the Certificate of Designations.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"Exercise Period" means the period during which this Warrant
is exercisable pursuant to Section 2.1.
"Expiration Date" means September 26, 2008.
"GAAP" means generally accepted accounting principles in the
United States of America as from time to time in effect.
"NASD" means the National Association of Securities Dealers,
Inc., or any successor corporation thereto.
"Other Property" has the meaning set forth in Section 4.3.
"Person" means any individual, sole proprietorship,
partnership, joint venture, trust, incorporated organization, association,
corporation, limited liability company, institution, public benefit corporation,
entity or government (whether federal, state, county, city, municipal or
otherwise, including, without limitation, any instrumentality, division, agency,
body or department thereof).
"Product-Triggered Redemption" has the meaning assigned in the
Certificate of Designations.
"Product-Triggered Redemption Event" has the meaning assigned
in the Certificate of Designations.
"Product-Triggered Redemption Notice" has the meaning assigned
in the Certificate of Designations.
"Purchase Agreement" means that certain Preferred Stock and
Warrant Purchase Agreement dated as of September __, 2003 among the Company and
the other parties named
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therein, pursuant to which this Warrant was originally issued.
"Preferred Stock" has the meaning assigned in the Purchase
Agreement.
"Redeemable Preferred Stock" means Preferred Stock that could
be, upon occurrence of a Product-Triggered Redemption Event, subject to a
Product-Triggered Redemption.
"Restricted Common Stock" means shares of Common Stock which
are, or which upon their issuance upon the exercise of any Warrant would be
required to be, evidenced by a certificate bearing the restrictive legend set
forth in Section 3.2.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Trading Day" means any day on which the primary market on
which shares of Common Stock are listed is open for trading.
"Transfer" means any disposition of any Warrant or Warrant
Shares or of any interest in either thereof, which would constitute a sale
thereof within the meaning of the Securities Act.
"Warrants" means this Warrant and all warrants issued upon
transfer, division or combination of, or in substitution for, any thereof. All
Warrants shall at all times be identical as to terms and conditions and date,
except as to the number of shares of Common Stock for which they may be
exercised.
"Warrant Price" means an amount equal to (i) the number of
shares of Common Stock being purchased upon exercise of this Warrant pursuant to
Section 2.1, multiplied by (ii) the Current Warrant Price.
"Warrant Shares" means any one or more of the [NUMBER] shares
of Common Stock to be purchased upon the exercise hereof, subject to adjustment
as provided herein.
2. EXERCISE OF WARRANT.
2.1. Manner of Exercise. (a) From and after the Closing
Date, and until 5:00 P.M., New York time, on the Expiration Date (the "Exercise
Period") and subject to the limitations provided in Section 12 below, the Holder
may exercise this Warrant, on any Business Day, for all or any part of the
number of shares of Warrant Shares purchasable hereunder.
(b) In order to exercise this Warrant, in whole
or in part, the Holder shall deliver to the Company at its principal office or
at the office or agency designated by the Company pursuant to Section 10, (i) a
written notice of Holder's election to exercise this Warrant, which notice shall
specify the number of shares of Warrant Shares to be purchased, (ii) payment of
the Warrant Price as provided herein, and (iii) this Warrant. Such notice shall
be
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substantially in the form of the subscription form appearing at the end of this
Warrant as Exhibit A, duly executed by the Holder or its agent or attorney. Upon
receipt thereof, the Company shall, as promptly as reasonably practicable, and
in any event within five Business Days thereafter, execute or cause to be
executed and deliver or cause to be delivered to the Holder a certificate or
certificates representing the aggregate number of Warrant Shares issuable upon
such exercise, together with cash in lieu of any fraction of a share, as
hereinafter provided. The stock certificate or certificates so delivered shall
be, to the extent possible, in such denomination or denominations as the Holder
shall request in the notice and shall be registered in the name of the Holder or
such other name as shall be designated in the notice. This Warrant shall be
deemed to have been exercised and such certificate or certificates shall be
deemed to have been issued, and the Holder or any other Person so designated to
be named therein shall be deemed to have become a Holder of record of such
shares for all purposes, as of the date when the notice, together with the
payment of the Warrant Price and this Warrant, is received by the Company as
described above. If this Warrant shall have been exercised in part, the Company
shall, at the time of delivery of the certificate or certificates representing
Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the
Holder to purchase the unpurchased shares of Common Stock called for by this
Warrant, which new Warrant shall in all other respects be identical with this
Warrant, or at the request of the Holder, appropriate notation may be made on
this Warrant and the same returned to the Holder.
(c) Payment of the Warrant Price may be made at
the option of the Holder by: (i) certified or official bank check payable to the
order of the Company or (ii) wire transfer to the account of the Company. All
shares of Common Stock issuable upon the exercise of this Warrant pursuant to
the terms hereof shall be validly issued and, upon payment of the Warrant Price,
shall be fully paid and nonassessable and not subject to any preemptive rights.
The Company shall pay all expenses in connection with, and all transfer, stamp
or similar taxes and other governmental charges that may be imposed with respect
to, the issue or delivery thereof, provided, however, that the Company shall not
be required to pay any tax which may be payable in respect of any transfer
involved in the issuance of any certificates for Warrant Shares or Warrants in a
name other than the name of the Holder.
(d) Except for the provisions with respect to
the Rights Agreement set forth in Section 4.7 hereof, prior to the exercise of
this Warrant, the Holder shall not be entitled to any rights as a stockholder of
the Company with respect to the Warrant Shares, including, without limitation,
the right to vote such Warrant Shares, receive dividends or other distributions
thereon or to be notified of stockholder meetings, except as set forth herein.
2.2. Fractional Shares. The Company shall not be required
to issue a fractional share of Common Stock upon exercise of any Warrant. As to
any fraction of a share which the Holder of one or more Warrants, the rights
under which are exercised in the same transaction, would otherwise be entitled
to purchase upon such exercise, the Company shall pay an amount in cash equal to
the Current Market Price per share of Common Stock on the date of exercise,
multiplied by such fraction.
2.3. Restrictions on Exercise Amount. Notwithstanding any
contrary or inconsistent provision hereof, the holder may not acquire a number
of Warrant Shares to the
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extent that, upon such exercise, the number of shares of Common Stock then
beneficially owned by such holder and its Affiliates and any other persons or
entities whose beneficial ownership of Common Stock would be aggregated with the
Holder's for purposes of Section 13(d) of the Exchange Act (including shares
held by any "group" of which the holder is a member) exceeds 4.95% of the total
number of shares of Common Stock of the Company then issued and outstanding
(such limitation being herein referred to as the "Beneficial Ownership Cap").
For purposes hereof, "group" has the meaning set forth in Section 13(d) of the
Exchange Act and applicable regulations of the Securities and Exchange
Commission, and the percentage held by the holder shall be determined in a
manner consistent with the provisions of Section 13(d) of the Exchange Act. The
Company shall have no obligation to verify compliance with this Section 2.3,
other than to issue Warrant Shares in accordance with the exercise notice of
each Holder. It shall be the responsibility of each Holder to determine such
Holder's compliance with the Beneficial Ownership Cap, and the Holder's exercise
notice shall be deemed a representation of the Holder that the number of shares
of Common Stock to be acquired pursuant to such exercise notice shall be in
compliance with the Beneficial Ownership Cap.
3. TRANSFER, DIVISION AND COMBINATION.
3.1. Transfer. The Warrants and the Warrant Shares shall
be freely transferable, subject to compliance with all applicable laws,
including, but not limited to the Securities Act. Transfer of this Warrant and
all rights hereunder, in whole or in part, shall be registered on the books of
the Company to be maintained for such purpose, upon surrender of this Warrant at
the principal office of the Company referred to in Section 13.2 or the office or
agency designated by the Company pursuant to Section 10, together with a written
assignment of this Warrant substantially in the form of Exhibit B hereto duly
executed by the Holder or its agent or attorney and funds sufficient to pay any
transfer taxes payable upon the making of such transfer. Upon such surrender
and, if required, such payment, the Company shall execute and deliver a new
Warrant or Warrants in the name of the assignee or assignees and in the
denomination specified in such instrument of assignment, and shall issue to the
assignor a new Warrant evidencing the portion of this Warrant not so assigned,
and this Warrant shall promptly be cancelled. The acceptance of the new Warrant
or Warrants by the transferee thereof shall be deemed the acceptance by such
transferee of all of the rights and obligations of a holder of this Warrant.
Notwithstanding anything herein to the contrary, this Warrant may not be
transferred or assigned in whole or in part without compliance with applicable
federal and state securities laws. Following a transfer that complies with the
requirements of this Section 3.1, the Warrant may be exercised by a new Holder
for the purchase of shares of Common Stock regardless of whether the Company
issued or registered a new Warrant on the books of the Company.
3.2. Restrictive Legend. Unless the resale of the Warrant
Shares has been registered under the Securities Act of 1933, as amended, each
certificate for Warrant Shares initially issued upon the exercise of this
Warrant, and each certificate for Warrant Shares issued to any subsequent
transferee of any such certificate, shall be stamped or otherwise imprinted with
a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
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ACT OF 1933 AS AMENDED, AND MAY NOT BE OFFERED,
SOLD, ASSIGNED OR TRANSFERRED, IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT
OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
THAT REGISTRATION UNDER SAID ACT IS NOT REQUIRED."
3.3. Division and Combination; Expenses;
Books. This Warrant may be divided or combined with other Warrants
upon presentation hereof at the aforesaid office or agency of the
Company, together with a written notice specifying the names and
denominations in which new Warrants are to be issued, signed by the
Holder or its agent or attorney. Subject to compliance with Section
3.1 as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or
Warrants in exchange for the Warrant or Warrants to be divided or
combined in accordance with such notice. The Company shall prepare,
issue and deliver at its own expense the new Warrant or Warrants
under this Section 3. The Company agrees to maintain, at its
aforesaid office or agency, books for the registration and the
registration of transfer of the Warrants.
4. ADJUSTMENTS. The number of shares of
Common Stock for which this Warrant is exercisable, and the price at
which such shares may be purchased upon exercise of this Warrant,
shall be subject to adjustment from time to time as set forth in
this Section 4. The Company shall give the Holder notice of any
event described below which requires an adjustment pursuant to this
Section 4 in accordance with Sections 5.1 and 5.2.
4.1 Stock Dividends, Subdivisions and
Combinations. (a) If at any time while this Warrant is outstanding
the Company shall:
i. take a record of the holders of
its Common Stock for the purpose of entitling them
to receive a dividend payable in, or other
distribution of, additional shares of Common
Stock,
ii. subdivide its outstanding shares
of Common Stock into a larger number of shares of
Common Stock, or
iii. combine its outstanding shares
of Common Stock into a smaller number of shares of
Common Stock,
then:
(1) the number of shares of Common Stock
acquirable upon exercise of this Warrant
immediately after the occurrence of any such
event shall be adjusted to equal the number
of shares of Common Stock which a record
holder of the same number of shares of
Common Stock that would have been acquirable
under this Warrant
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immediately prior to the occurrence of such
event would own or be entitled to receive
after the happening of such event, and
(2) the Current Warrant Price shall be adjusted
to equal:
(A) the Current Warrant Price in effect
immediately prior to the occurrence
of such event multiplied by the
number of shares of Common Stock
into which this Warrant is
exercisable immediately prior to the
adjustment, divided by
(B) the number of shares of Common Stock
into which this Warrant is
exercisable immediately after such
adjustment.
(b) Any adjustment made pursuant to Section 4.1(a)(i) shall become
effective immediately after the record date for the determination of
shareholders entitled to receive such dividend or distribution, and any
adjustment pursuant to Sections 4.1(a)(ii) or (iii) shall become effective
immediately after the effective date of such subdivision or combination.
4.2 Fractional Interests. In computing adjustments
under this Section 4, all calculations shall be made to the nearest 1/100th of a
share.
4.3 Reorganization, Reclassification, Merger,
Consolidation or Disposition of Assets.
a. If, during the Exercise Period, there shall
occur a Change of Control and, pursuant to the terms of such Change of Control,
shares of common stock of the successor or acquiring corporation, or any cash,
shares of stock or other securities or property of any nature whatsoever
(including warrants or other subscription or purchase rights) in addition to or
in lieu of common stock of the successor or acquiring corporation ("Other
Property"), are to be received by or distributed to the holders of Common Stock
of the Company, then the Holder of this Warrant shall have the right thereafter
to receive, upon the exercise of the Warrant, the number of shares of common
stock of the successor or acquiring corporation or of the Company, if it is the
surviving corporation, and the Other Property receivable upon or as a result of
such Change of Control by a holder of the number of shares of Common Stock into
which this Warrant is exercisable immediately prior to such event.
b. In case of any such Change of Control, the
successor or acquiring corporation (if other than the Company) shall expressly
assume the due and punctual observance and performance of each and every
covenant and condition contained in this Warrant to be performed and observed by
the Company and all the obligations and liabilities hereunder, subject to such
modifications as may be deemed appropriate (as determined by resolution of the
Board of Directors of the Company) in order to provide for adjustments of shares
of the Common Stock into which this Warrant is exercisable which shall be as
nearly equivalent as practicable to the adjustments provided for in Section 4.
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4.4 Other Action Affecting Common Stock. In case at any
time or from time to time the Company shall take any action in respect of its
Common Stock, then, unless such action will not have a materially adverse effect
upon the rights of the holder of this Warrant, the number of shares of Common
Stock or other stock into which this Warrant is exercisable and/or the purchase
price thereof shall be adjusted in such manner as may be equitable in the
circumstances.
4.5 Certain Limitations. Notwithstanding anything herein
to the contrary, the Company agrees not to enter into any transaction which, by
reason of any adjustment hereunder, would cause the Current Warrant Price to be
less than the par value per share of Common Stock.
4.6 Stock Transfer Taxes. The issue of stock certificates
upon exercise of this Warrant shall be made without charge to the holder for any
tax in respect of such issue.
4.7 Rights Distributed Under Rights Agreement.
Capitalized terms used in this Section 4.7 and which are not otherwise defined
herein shall have the meanings ascribed to them in the Rights Agreement (the
"Rights Agreement") dated as of December 13, 2000, between the Company and U.S.
Stock Transfer Corporation. While the Rights Agreement or any other poison pill,
rights plan or similar arrangement (each, a "Rights Plan") shall be in effect:
a. A Holder who exercises any portion of this
Warrant before the Distribution Date or before any Rights Certificates or
similar right (each a "Right") shall be evidenced by a separate rights
certificate or before any Right shall otherwise be transferable otherwise than
in connection with the transfer of the Warrant Shares (the date of the
occurrence of any of the foregoing being referred to herein as a "Rights
Distribution Date") will receive, upon exercise of this Warrant, in addition to
the Warrant Shares issuable upon exercise of this Warrant, one Right for each
such Warrant Share.
b. A Holder who exercises any portion of this
Warrant after a Rights Distribution Date shall receive, upon exercise of this
Warrant, in addition to the Warrant Shares issuable upon exercise of this
Warrant, such number of Rights equal to the number of Rights such Holder would
have held if, immediately prior to the Rights Distribution Date, the portion of
this Warrant being exercised at such time had been exercised and the Warrant
Shares issuable upon such exercise were outstanding immediately prior to the
Rights Distribution Date. The Company shall issue to the Holder certificates
evidencing such Rights, no later than five business days following such exercise
date. In the event the applicable Rights Plan does not permit such Rights to be
granted to each Holder, the Company shall, in lieu of the Rights issuable
pursuant to the immediately preceding sentence, issue to each Holder an option,
right or similar arrangement giving each Holder the same rights and benefits as
they would have held upon the receipt of the applicable number of Rights.
5. NOTICES TO WARRANT HOLDERS.
5.1. Certificate as to Adjustments. Upon the occurrence of
each adjustment or readjustment of the Current Warrant Price, or the number of
shares of Common Stock and the amount, if any of other property which at the
time would be received upon exercise of the
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Warrants owned by such Holder, the Company, at its expense, shall promptly
compute such adjustment or readjustment in accordance with the terms hereof and
prepare and furnish to the Holder of this Warrant a certificate setting forth
such adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Company shall, upon the written request
at any time of the Holder of this Warrant, furnish or cause to be furnished to
such Holder a like certificate setting forth (i) such adjustments and
readjustments, (ii) the Current Warrant Price at the time in effect and (iii)
the number of shares of Common Stock and the amount, if any, or other property
which at the time would be received upon the exercise of Warrants owned by such
Holder.
5.2. Notice of Corporate Action. If at any time:
(a) the Company shall take a record of the
holders of its Common Stock for the purpose of entitling them to
receive a dividend or other distribution, or any right to subscribe for
or purchase any evidences of its indebtedness, any shares of stock of
any class or any other securities or property, or to receive any other
right, or
(b) there shall be any capital reorganization of the
Company, any reclassification or recapitalization of the capital stock
of the Company or any consolidation or merger of the Company with, or
any sale, transfer or other disposition of all or substantially all the
property, assets or business of the Company to, another corporation, or
(c) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to the
Holder (i) at least 15 days' prior written notice of the record date
shall be selected for such dividend, distribution or right or for
determining rights to vote in respect of any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up, and (ii) in the case of any
such reorganization, reclassification, merger, consolidation, sale,
transfer, disposition, dissolution, liquidation or winding up, at least
15 days' prior written notice of the date when the same shall take
place. Such notice in accordance with the foregoing clause also shall
specify (i) the date on which any such record is to be taken for the
purpose of such dividend, distribution or right, the date on which the
holders of Common Stock shall be entitled to any such dividend,
distribution or right, and the amount and character thereof, and (ii)
the date on which any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or
winding up is to take place and the time, if any such time is to be
fixed, as of which the holders of Common Stock shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or
winding up. Each such written notice shall be sufficiently given if
addressed to the Holder at the last address of the Holder appearing on
the books of the Company and delivered in accordance with Section 13.2.
The failure to give any notice required by this Section 5.2 shall not
invalidate any such corporate action.
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5.3. Notice to Stockholders. The Holder shall be entitled
to the same rights to receive notice of Company action as any holder of Common
Stock.
6. NO IMPAIRMENT. The Company shall not by any action,
including, without limitation, amending its certificate of incorporation or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, avoid or
seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms
and in the taking of all such actions as may be necessary or appropriate to
protect the rights of the Holder against impairment. Without limiting the
generality of the foregoing, the Company will (a) not increase the par value of
any shares of Common Stock receivable upon the exercise of this Warrant above
the amount payable therefor upon such exercise immediately prior to such
increase in par value, (b) take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable shares of Common Stock upon the exercise of this Warrant, and
(c) use its best efforts to obtain all such authorizations, exemptions or
consents from any public regulatory body having jurisdiction thereof as may be
necessary to enable the Company to perform its obligations under this Warrant.
Upon the request of the Holder, the Company will at any time during the period
this Warrant is outstanding acknowledge in writing, in form satisfactory to the
Holder, the continuing validity of this Warrant and the obligations of the
Company hereunder.
7. RESERVATION AND AUTHORIZATION OF COMMON STOCK;
REGISTRATION WITH APPROVAL OF ANY GOVERNMENTAL AUTHORITY. From and after the
Closing Date, the Company shall at all times reserve and keep available for
issue upon the exercise of Warrants such number of its authorized but unissued
shares of Common Stock as will be sufficient to permit the exercise in full of
all outstanding Warrants. All shares of Common Stock which shall be so issuable,
when issued upon exercise of any Warrant and payment therefor in accordance with
the terms of such Warrant, shall be duly and validly issued and fully paid and
nonassessable, and not subject to preemptive rights. Before taking any action
which would cause an adjustment reducing the Current Warrant Price below the
then par value, if any, of the shares of Common Stock issuable upon exercise of
the Warrants, the Company shall take any corporate action which may be necessary
in order that the Company may validly and legally issue fully paid and
non-assessable shares of such Common Stock at such adjusted Current Warrant
Price. Before taking any action which would result in an adjustment in the
number of shares of Common Stock for which this Warrant is exercisable or in the
Current Warrant Price, the Company shall obtain all such authorizations or
exemptions thereof, or consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof. If any shares of Common
Stock required to be reserved for issuance upon exercise of Warrants require
registration or qualification with any governmental authority under any federal
or state law before such shares may be so issued (other than as a result of a
prior or contemplated distribution by the Holder of this Warrant), the Company
will in good faith and as expeditiously as possible and at its expense endeavor
to cause such shares to be duly registered.
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8. TAKING OF RECORD; STOCK AND WARRANT TRANSFER BOOKS.
In the case of all dividends or other distributions by the Company to the
holders of its Common Stock with respect to which any provision of Section 4
refers to the taking of a record of such holders, the Company will in each such
case take such a record and will take such record as of the close of business on
a Business Day. The Company will not at any time, except upon dissolution,
liquidation or winding up of the Company, close its stock transfer books or
Warrant transfer books so as to result in preventing or delaying the exercise or
transfer of any Warrant.
9. LOSS OR MUTILATION. Upon receipt by the Company from
the Holder of evidence reasonably satisfactory to it of the ownership of and the
loss, theft, destruction or mutilation of this Warrant and indemnity reasonably
satisfactory to it (it being understood that the written agreement of the
original Holder shall be sufficient indemnity) and in case of mutilation upon
surrender and cancellation hereof, the Company will execute and deliver in lieu
hereof a new Warrant of like tenor to the Holder; provided, however, that in the
case of mutilation, no indemnity shall be required if this Warrant in
identifiable form is surrendered to the Company for cancellation. Applicants for
a replacement Warrant under such circumstances shall also comply with such other
reasonable regulations and procedures and pay such other reasonable charges as
the Company may prescribe.
10. OFFICE OF THE COMPANY. As long as any of the Warrants
remain outstanding, the Company shall maintain an office or agency (which may be
the principal executive offices of the Company) where the Warrants may be
presented for exercise, registration of transfer, division or combination as
provided in this Warrant.
11. LIMITATION OF LIABILITY. No provision hereof, in the
absence of affirmative action by the Holder to purchase shares of Common Stock,
and no enumeration herein of the rights or privileges of the Holder hereof,
shall give rise to any liability of the Holder for the purchase price of any
Common Stock, whether such liability is asserted by the Company or by creditors
of the Company.
12. LIMITATION ON EXERCISE RIGHTS/ PRODUCT-TRIGGERED
REDEMPTION.
12.1 (a) Subject to adjustment pursuant to Section 12.2,
this Warrant shall be exercisable in full upon the first to occur of:
(i) the close of business on December 30, 2003
if a Product-Triggered Redemption Event has not occurred;
(ii) the close of business on January 27, 2004 if
a Product-Triggered Redemption Event has occurred;
(iii) such time that the Holder receives a
Product-Triggered Redemption Notice indicating that the
Company has completed an acquisition of a compound as
contemplated in Section 14(a) of the Certificate of
Designations so as to preclude the occurrence of a
Product-Triggered Redemption Event;
(iv) such time that the Holder has converted all
of its Redeemable
12
Preferred Stock to Common Stock; or
(v) such time that the Holder has irrevocably
waived its right to a Product-Triggered Redemption with
respect to all of its Redeemable Preferred Stock by delivering
a written notice to the Company of such waiver.
(b) The Warrant shall be exercisable in part as
described below. There shall be two portions of this Warrant, a portion
that is exercisable (the "Exercisable Portion") and a portion that is
not exercisable (the "Non-Exercisable Portion"), each such portion
shall be expressed as the number of Common Shares acquirable within
each. Initially the Non-Exercisable Portion shall consist of all of the
Warrant, and the portions shall be adjusted as follows:
(i) If, at any time, the Holder converts less
than all of its Redeemable Preferred Stock, then the
Exercisable Portion of this Warrant shall be adjusted by
adding to it an amount of the Warrant obtained by (i) dividing
the number of shares of Redeemable Preferred Stock so
converted by the total number of shares of Redeemable
Preferred Stock held by the Holder immediately prior to such
conversion and (ii) multiplying this factor by the number of
Common Shares represented by the Non-Exercisable Portion. The
Non-Exercisable Portion shall be simultaneously adjusted by
subtracting from it the amount added to the Exercisable
Portion.
(ii) If, at any time, the Holder irrevocably
waives its Product-Triggered Redemption right with respect to
less than all of its Redeemable Preferred Stock, then the
Exercisable Portion of this Warrant shall be adjusted by
adding to it an amount of the Warrant obtained by (i) dividing
the number of shares of Redeemable Preferred Stock with
respect to which such waiver is made by the total number of
shares of Redeemable Preferred Stock held by the Holder
immediately prior to such waiver and (ii) multiplying this
factor by the number of Common Shares represented by the
Non-Exercisable Portion. The Non-Exercisable Portion shall be
simultaneously adjusted by subtracting from it the amount
added to the Exercisable Portion.
(iii) If a new Warrant is issued to the Holder
upon exercise in part of this Warrant (as described in Section
2.1(b)), then the Exercisable Portion of the new Warrant shall
be equal to the Exercisable Portion of this Warrant prior to
exercise minus the number of shares of Common Stock for which
this Warrant was exercised and the Non-Exercisable Portion of
the new Warrant shall be the same as the Non-Exercisable
Portion of this Warrant prior to such exercise.
12.2 Automatic Amendment. If a Holder delivers a Demand
for Product-Triggered Redemption pursuant to Section 14 of the Certificate of
Designations with respect to any portion of that Holder's Redeemable Preferred
Stock, then this Warrant shall be deemed automatically amended, without
additional consideration or action, to reduce the Non-Exercisable Portion by a
percentage equal to the percentage of the Holder's Redeemable
14
Preferred Stock (held immediately prior to such redemption) so redeemed. A
reduction in the Non-Exercisable Portion pursuant to this Section 12.2 shall not
result in an increase of the Exercisable Portion. This Warrant may thereupon be
amended or replaced by a new Warrant of like tenor reflecting such amendment.
13. MISCELLANEOUS.
13.1. Nonwaiver and Expenses. No course of dealing or any
delay or failure to exercise any right hereunder on the part of the Holder shall
operate as a waiver of such right or otherwise prejudice Holder's rights, powers
or remedies. If the Company fails to make, when due, any payments provided for
hereunder, or fails to comply with any other provision of this Warrant, the
Company shall pay to the Holder such amounts as shall be sufficient to cover any
costs and expenses including, but not limited to, reasonable attorneys' fees,
including those of appellate proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights,
powers or remedies hereunder.
13.2. Notice Generally. All notices, requests, demands or
other communications provided for herein shall be in writing and shall be deemed
to have been given the next Business Day after being deposited with a nationally
recognized overnight courier such as Federal Express, or when personally
delivered, or successfully sent by facsimile transmission as evidenced by a fax
machine confirmation report thereof, addressed, as the case may be, to the
Holder at the address on the books and records of the Company; or to the
Company, Spectrum Pharmaceuticals, Inc., at 000 Xxxxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxx 00000, Att'n: CEO, Fax No. (000) 000-0000; with a copy to Xxxxxx &
Xxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000,
Att'n: Xxxx X. Xxxxxx, Esq., Fax No. (000) 000-0000, or to such other person or
address as either party shall designate to the other from time to time in
writing forwarded in like manner.
13.3. Successors and Assigns. Subject to compliance with
the provisions of Section 3.1, this Warrant and the rights evidenced hereby
shall inure to the benefit of and be binding upon the successors of the Company
and the successors and assigns of the Holder. The provisions of this Warrant are
intended to be for the benefit of all Holders from time to time of this Warrant,
and shall be enforceable by any such Holder, but nothing in this Warrant shall
be construed to give any person or corporation or other entity, other than the
Company and the Holder and their respective successors and assigns, any legal or
equitable right, remedy or cause under this Warrant.
13.4. Amendment. This Warrant may be modified or amended or
the provisions of this Warrant waived with the written consent of the Company
and the Holder.
13.5. Severability. Wherever possible, each provision of
this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited
by or invalid under applicable law, such provision shall be modified to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Warrant.
14
13.6. Headings. The headings used in this Warrant are for
the convenience of reference only and shall not, for any purpose, be deemed a
part of this Warrant.
13.7. Governing Law. This Warrant and the transactions
contemplated hereby shall be deemed to be consummated in the State of New York
and shall be governed by and interpreted in accordance with the local laws of
the State of New York without regard to the provisions thereof relating to
conflict of laws. The Company hereby irrevocably consents to the exclusive
jurisdiction of the State and Federal courts located in New York City, New York
in connection with any action or proceeding arising out of or relating to this
Warrant. In any such litigation the Company waives personal service of any
summons, complaint or other process and agrees that the service thereof may be
made by certified or registered mail directed to the Company at its address set
forth in Section 13.2.
[Signature Page Follows]
15
IN WITNESS WHEREOF, the Company has caused this Series E-2
Warrant to be executed by its duly authorized officer and attested by its
Secretary.
Dated: September 26, 2003
SPECTRUM PHARMACEUTICALS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxxxxx, M.D.
Chairman, President and Chief Executive
Officer
Attest:
By: /s/ Xxxxx Xxxxxxxx
-----------------------
Xxxxx Xxxxxxxx
Corporate Secretary
See Schedule 1 to the Preferred Stock and Warrant Purchase Agreement dated as of
September 26, 2003 (filed as Exhibit 10.1 to this Form 8-K) for name of each
purchaser receiving warrants and the number of warrants issued to each
Purchaser.
EXHIBIT A
SUBSCRIPTION FORM
[To be executed only upon exercise of Warrant]
The undersigned registered owner of this Warrant exercises this Warrant for the
purchase of shares of Common Stock of Spectrum Pharmaceuticals, Inc., a Delaware
corporation (the "Company"), and herewith makes payment therefor, all at the
price and on the terms and conditions specified in this Warrant and requests
that certificates for the shares of Common Stock hereby purchased (and any
securities or other property issuable upon such exercise) be issued in the name
of and delivered to __________________ and whose address is_____________________
____________________________________. And, if such shares of Common Stock shall
not include all of the shares of Common Stock issuable as provided in this
Warrant, that a new Warrant of like tenor and date for the balance of the shares
of Common Stock issuable hereunder be delivered to the undersigned.
As of the date hereof, and assuming the accuracy of all information filed by the
Company with the Securities and Exchange Commission, the undersigned Holder
hereby certifies that the exercise of the referenced Warrant for the number of
shares of Common Stock herein indicated will not put the undersigned Holder out
of compliance with the Beneficial Ownership Cap (as defined in the Warrant).
By signing below, the Holder warrants and represents that the Holder (i) is an
"accredited investor" as that term is defined under Regulation D of the
Securities and Exchange Commission promulgated under the Securities Act of 1933,
as amended and (ii) is acquiring the securities for its own account for
investment and not with a view to, or for sale in connection with, any
distribution thereof, nor with the intention of distributing or reselling the
same, provided, however, that by making the representation herein, the Holder
does not agree to hold any of the securities for any minimum or other specific
term and reserves the right to dispose of the securities at any time in
accordance with or pursuant to a registration statement or an exemption under
the Securities Act.
(Name of Registered Owner)
(Signature of Registered Owner)
(Street Address)
(State) (Zip Code)
NOTICE: The signature on this subscription must correspond with the name as
written upon the face of the Warrant.
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of this Warrant for the
purchase of shares of Spectrum Pharmaceuticals, Inc., a Delaware corporation,
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under this Warrant, with respect to the number of
shares of Common Stock set forth below:
Name and Address of Assignee: _____________________________________________
No. of Shares of Common Stock: ____________________________________________
and does hereby irrevocably constitute and appoint _____________________________
attorney-in-fact to register such transfer on the books of the Company,
maintained for the purpose, with full power of substitution in the premises.
Dated: ______________________________________________
Print Name:__________________________________________
Signature:____________________________________________
Witness:_____________________________________________
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the Warrant in every particular.
